Opinion
# 2015-018-617 Claim No. 113326 Motion No. M-85900
04-22-2015
ESTATE OF LYN BRIGGS, by LISA BREED, Administrator v. STATE OF NEW YORK
EDWARD E. KOPKO, LAWYER, P.C. By: Edward E. Kopko, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Edward F. McArdle, Esquire Assistant Attorney General
Synopsis
Claimant has failed to raise a triable issue of fact warranting a trial of this claim. Claimant's expert opines that the combined exclusive and concurrent phasing of the pedestrian signal was not designed in accordance with accepted traffic engineering practice. The expert is not a licensed engineer and has not indicated how the determination for the ped-interval and concurrent phasing might have failed to comply with accepted engineering practice. Expert's conclusory opinion without any supportive traffic engineering authority or factual circumstances that would require a different signal phasing at this intersection do not raise an issue of fact. The signaling determination made was, as a matter of law, discretionary. The claim is DISMISSED.
Case information
| UID: | 2015-018-617 |
| Claimant(s): | ESTATE OF LYN BRIGGS, by LISA BREED, Administrator |
| Claimant short name: | BRIGGS |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 113326 |
| Motion number(s): | M-85900 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | EDWARD E. KOPKO, LAWYER, P.C. By: Edward E. Kopko, Esquire |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Edward F. McArdle, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 22, 2015 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant brings a motion seeking summary judgment dismissing the claim. Claimant opposes the motion.
Claimant, the administrator of decedent's estate, filed this claim on February 13, 2007, seeking damages for decedent's pain and suffering, pre-impact terror, and wrongful death. That claim was amended as of right within 40 days of the verified answer, with an amended notice of claim filed on April 16, 2007. The basis for the amended claim is an accident that occurred on Friday November 17, 2006, at approximately 6:30 p.m., at the intersection of Central Avenue and Church Street in the City of Cortland. Decedent and her friend were crossing Church Street in the crosswalk when they were struck by a vehicle driven by Jeffrey C. Stockton turning left from Central Avenue onto Church Street. The collision caused the death of decedent and injuries to her friend. Claimant further alleges that on or about April 5, 2006 the Defendant, Department of Transportation, received a letter from Michael Preston, Superintendent of Public Safety for Cortland, requesting that the pedestrian signal at the intersection where this accident occurred be changed to an exclusive pedestrian phase because this intersection is near the County Office Building and used by many elderly residents, and the concurrent pedestrian phase causes confusion when two other nearby intersections have exclusive pedestrian phasing. Claimant alleges that the State failed to "design, build, operate and maintain traffic and pedestrian control devices to provide for the safe passage of pedestrians at the intersection of Central Avenue and Church Street" in Cortland.
The Defendant now argues that it is entitled to judgment as a matter of law on two grounds. First, Defendant argues that both the traffic light and pedestrian crosswalk light were in good working order at the time of this accident and were designed in accordance with good and accepted engineering practices based upon studies performed in 2002. A further study was being conducted, but was not yet completed at the time of this accident, prompted by the April 5, 2006 letter from Michael Preston. This study, proceeding in a reasonable time frame, along with the prior design determinations made in 2002, utilized professional engineering judgment and are, therefore, subject to qualified immunity. Alternatively, Defendant argues that the sole proximate cause of Claimant's decedent's injuries and death was the action of the driver of the vehicle that struck decedent and her friend because he failed to yield the right of way in accordance with the traffic law, was driving while intoxicated and was convicted of Vehicular Manslaughter in the 2nd degree, among other charges.
Defendant submitted the affidavit of Scott R. Bates, who has been a civil engineer with the New York State Department of Transportation (DOT) since 1998. In 2006, he became the Traffic Signal Section Supervisor for Region 3 which includes Cortland County. He is responsible for conducting engineering studies at intersections with State roadways. He then makes recommendations for signals to his supervisors. He reviewed studies of this intersection performed in 2002 and 2006. At the time of this accident, there was a crosswalk on Church Street with a pedestrian signal which provided a 6 second advance pedestrian "Walk" signal, where all traffic in the intersection was stopped. After the 6 seconds, there was a concurrent phasing of an additional 5 seconds of "Walk" followed by 10 seconds of "Don't Walk" time when the light on Central Avenue was green. During this concurrent phasing, vehicles turning left onto Church Street would have a green ball indication permitting them to turn when oncoming traffic is clear and there are no pedestrians in the crosswalk. This combined exclusive/concurrent phasing of the pedestrian signal at this intersection was an upgrade in 2002 from solely concurrent phasing, the most common type of pedestrian signaling. Concurrent phasing allows pedestrians to move parallel to and adjacent with the movement of traffic. The exclusive/concurrent phasing allows pedestrians to proceed into the crosswalk before any vehicles making them more visible to drivers. The determination to use this type of signal, according to Mr. Bates, involved an engineering judgement that this was the most appropriate signal for the intersection. Mr. Bates notes that regardless of the type of pedestrian signal used, drivers are required to abide by the rules of the road, including giving pedestrians the right of way in the crosswalk. Mr. Bates also states that the traffic light in place at the time of the accident was in good working order and programmed in accordance with accepted engineering practices.
In 2006, DOT initiated another study of the intersection after receiving a letter from Michael Preston, Superintendent of Public Safety for the City of Cortland. Over the next several months, data was collected including the number and description of pedestrian and bicycle accidents at this intersection, vehicular traffic counts, capacity analysis, photographs, and field observations. After analyzing this information, Mr. Bates on December 12, 2006, made a recommendation to his supervisor, the Assistant Regional Traffic Engineer, to change the pedestrian signaling at this intersection to an exclusively pedestrian phase signal, even though the moderate pedestrian traffic did not meet the warrants for an exclusive pedestrian cycle. Mr. Bates recommended this option to his supervisors because the change would minimally impact the pedestrian and vehicle traffic at this intersection.
Defendant also submits the affidavit of Robert E. Bennett, a New York State Police Investigator in the State Police Reconstruction Unit of Troop C. Trooper Bennett performed the accident reconstruction of this accident which occurred on November 17, 2006, at approximately 6:40 p.m. Jeffrey C. Stockton, was driving his vehicle west on Central Avenue when he proceeded to make a left turn onto Church Street causing his front passenger side bumper area to collide with decedent and another pedestrian, Melody Benn. Both pedestrians were walking westbound in the crosswalk on Church Street with the "Walk" signal at the intersection with Central Avenue. The roadway at this location is straight and level, and the weather was partly cloudy with no precipitation. The roadway had no obstructions. There was limited artificial lighting at the intersection.
Based upon Trooper Bennett's investigation, he calculated the speed at which Mr. Stockton was traveling between 22 and 26 miles per hour. Mr. Stockton was operating his vehicle while intoxicated, and he was convicted of Operating a Motor Vehicle While Under the Influence of Alcohol as a Misdemeanor (Vehicle and Traffic Law § 1192 [3]); Vehicular Manslaughter in the 2nd Degree (Penal Law § 125.12-01); Vehicular Assault in the 2nd Degree (Penal Law § 120.03-01); and Failure to Use Due Care (Vehicle and Traffic Law § 1146). Mr. Stockton was employed, at the time of the accident, as a City of Cortland police officer. Trooper Bennett concluded, based upon his investigation, that the primary cause of this accident was the failure of Mr. Stockton to exercise due care and yield the right-of-way to the pedestrians as required by Vehicle and Traffic Law section 1146. A copy of Trooper Bennett's report, with the scaled diagrams, photographs, and other supporting materials, along with the Cortland Police Department Accident Report were also submitted by Defendant on this motion.
Defendant, as the party seeking summary judgment, has the burden to come forward with proof in admissible form to make out a prima facie case, showing its entitlement to judgment as a matter of law (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). "Failure to make such a showing requires denial of the motion regardless of the sufficiency of the opposing papers." (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
The State owes to the traveling public a nondelegable duty to design, construct, and maintain its roadways for both vehicular traffic and pedestrians, in a reasonably safe condition under the circumstances (Friedman v State of New York, 67 NY2d 271, 283 [1986]; Tomassi v Town of Union, 46 NY2d 91, 97 [1978]; Way v State of New York, 94 AD2d 857, [3d Dept 1983]). In the field of highway design and planning, the State is accorded qualified immunity for its discretionary decisions relating to highway planning (Weiss v Fote, 7 NY2d 579, 584-588 [1960]; Friedman, 67 NY2d 271; Alexander v Eldred, 63 NY2d 460, 466 [1984]). Unless the State's design or plan was arrived at without adequate study or lacked a reasonable basis, no liability may be imposed (Weiss, 7 NY2d at 586; Friedman, 67 NY2d at 284).
The Defendant has presented a prima facie showing of its entitlement to judgment as a matter of law. Defendant has established that in determining what pedestrian signaling would be provided at this intersection it completed a study in 2002, which collected and reviewed available data regarding the intersection, traffic and accident information. DOT then analyzed the information to arrive at a plan for the type of signal that would be provided using accepted practice in traffic engineering. The signal was in good working order at the time of this accident. This, however, does not end the story. A review of Claimant's evidentiary proof must be made to determine whether she has established the existence of a material fact which would require a trial (Zuckerman v City of New York, 49 NY2d 557; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). Summary judgment, as is often said, is a drastic remedy which should only be granted where there are no issues of fact, and the claim can be decided as a matter of law (Sillman v Twentieth Century-Fox Film, Corp., 3 NY2d 395). Summary judgment should not be granted whenever there is 'any doubt' as to the existence of a factual issue (Millerton Agway Coop. v Briarcliff Farms, 17 NY2d 57, 61 [1966]; Sillman, 3 NY2d 395), or whenever the court must engage in factual 'issue-determination' rather than 'issue-finding' (State of New York v Lundin, 60 NY2d 987 [1983]; Sillman, 3 NY2d at 404).
There really is no dispute as to the facts leading up to this accident. Claimant submits the supporting deposition of Melody Ann Benn, who describes the events on the evening of November 17, 2006, between 6:30 and 7:00 p.m. Ms. Benn states that she and her friend, decedent, met at Melody Benn's apartment at 65 Central Avenue to walk downtown toward the intersection of Central Avenue and Church Street. When they reached the intersection, Ms. Benn pushed the button for the pedestrian crossing signal. Decedent was on Ms. Benn's right, on the side of Central Avenue. Ms. Benn recalled seeing the walking symbol appear and checking for traffic before they began to cross the road. Both women were engaged in conversation as they proceeded to cross Church Street. At a point approximately half-way across Church Street, Ms. Benn recalled decedent calling her name before they were both hit by the vehicle. Ms. Benn denied hearing any tires or brakes squealing before they were hit.
Claimant also submits the complete deposition transcript of Scott Bates. He detailed the process that DOT goes through when it is determining what type of pedestrian signal, if any, is needed at any particular intersection. Although Mr. Bates did not participate in the 2002 study, he indicated it would have involved an operation analysis of pedestrian and traffic volumes and field observations to assess pedestrian usage. After that study, the pedestrian signal at the intersection was changed from the typical concurrent phasing, when pedestrians are prompted to cross parallel with vehicular movement on the adjacent street, to "ped-interval" and concurrent phasing. This change meant pedestrians were given six exclusive seconds for crossing while all vehicular traffic had a red light, allowing the pedestrian to get into the intersection, for purposes of visibility, after which parallel vehicular traffic was permitted to proceed. Using the measurements taken by the State Police, Mr. Bates estimated that the "ped-interval and concurrent phasing" signal at this intersection would have allowed decedent and Ms. Benn to walk approximately 21 feet into the approximately 52 feet wide roadway before Mr. Stockton was given a green light allowing him to turn onto Church Street. Between 2001 and October 31, 2006, there were three pedestrian and bicycle accidents which Mr. Bates did not consider to be an above average number of accidents. Nor did he find that the existing pedestrian signals contributed to those accidents.
Exhibit 2, Bates' deposition, page 11.
After DOT received the letter from Michael Preston, dated April 5, 2006, another study of the pedestrian signaling was conducted, this time by Mr. Bates. Mr. Bates initiated this study with a request for traffic counts for both vehicle and pedestrians. This data collection is contracted out by another department of DOT. Mr. Bates collected and reviewed the information for the three pedestrian and bicycle accidents at this intersection. A "level of service analysis" was then performed, and he made observations of the intersection. All of the collected data was reviewed and then a recommendation was made to Mr. Bates' supervisor. In this case, the recommendation was made in December 2006, after completion of the study and, unfortunately, after this accident, to change the signaling to an exclusive pedestrian phase. The exclusive pedestrian phase, Mr. Bates testified, means all approaches at the intersection are stopped by a red light and pedestrians have the exclusive right to proceed. This requires a longer cycling time and is typically done where there is very heavy pedestrian traffic. Mr. Bates acknowledged that exclusive pedestrian phase signaling reduces the potential of turning vehicles hitting pedestrians.
Claimant has also provided the affidavit of Rob Outhouse, a motor vehicle accident reconstruction expert. Mr. Outhouse is a retired Sheriff of Cayuga County, and he has an Associates Degree in Mechanical Engineering Technology, in addition to his many years of law enforcement training.
Mr. Outhouse opines that Mr. Stockton's failure to use due care, his intoxication, and his cell phone use at the time of the accident were not the sole or primary causes of this accident as determined by Trooper Bennett. Mr. Outhouse investigated the scene of this accident and determined that the point of impact was 40.4 feet into the crosswalk. He made observations and calculated the average time it took pedestrians to cross Church Street at this intersection was 18.52 seconds, with 9.26 seconds to reach the center of the intersection. The average time that it took vehicles turning left onto Church Street from Central Avenue to the middle of the crosswalk was 5.55 seconds, and the turning arc from the stop line on Central Avenue to the point of impact was 82.8 feet. Using this turn data, he calculated an acceleration distance of 5.37 feet per second, and a speed of 20 mile per hour. Based upon the calculations, he indicates there is no evidence that Mr. Stockton actually came to a complete stop at the intersection before turning. Instead, Mr. Outhouse opines he could have arrived at the intersection when the light was already green allowing him to proceed onto Church Street. This, Mr. Outhouse concludes, with Ms. Benn and decedent's potentially slower pace given their age and involvement in conversation, means they may not have reached beyond the middle of the crosswalk at the time of impact. Rather, Mr. Outhouse opines that the limited artificial lighting and the advanced pedestrian interval signal were contributing factors to this accident. He further concludes that the highway planning decisions resulting in the six-second delay to concurrent phasing of the pedestrian signal with the traffic light were unreasonable and inadequate to protect decedent and Ms. Benn.
Claimant has failed to raise a triable issue of fact warranting a trial of this claim. Although Claimant's expert opines that the combined exclusive and concurrent phasing of this pedestrian signal was not designed in accordance with accepted traffic engineering practice, Mr. Outhouse is not a licensed engineer, and has not indicated how the determination for the ped-interval and concurrent phasing might have failed to comply with accepted engineering practice. Mr Outhouse's conclusory opinion without any supportive traffic engineering authority or factual circumstances that would require a different signal phasing at this intersection do not raise an issue of fact. Rather, the signaling determination made was, as a matter of law, discretionary. No triable issue has been raised as to the reasonableness of the State's action in designing and implementing the pedestrian phasing at this intersection at the time of this accident.
Accordingly, Defendant's motion must be granted and the claim DISMISSED.
April 22, 2015
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following in deciding this motion:
1) Notice of Motion.
2) Affirmation of Edward F. McArdle, Esquire, Assistant Attorney General, in support, with exhibits attached thereto.
3) Defendant's Brief in support of summary judgment.
4) Affirmation of Edward E. Kopko, Esquire, in opposition, with exhibits attached thereto.
5) Affidavit of Rob Outhouse in opposition to motion to dismiss, sworn to February 23, 2015.
6) Memorandum of Law in opposition to motion to dismiss by Edward E. Kopko, Esquire.
7) Reply Affirmation of Edward F. McArdle, Esquire, Assistant Attorney General, in support.